Harvey v. Rome Scale & Mfg. Co

• Decision Date: 07 October 1913
• Docket Number: (No. 4,907.)
• Court: Georgia Court of Appeals
• Parties: HARVEY. v. ROME SCALE & MFG. CO.

79 S.E. 487

(13 Ga. App. 571)

HARVEY.

v.ROME SCALE & MFG. CO.

(No. 4, 907.)

Court of Appeals of Georgia.

Oct. 7, 1913.

(Syllabus by the Court.)

Error from City Court of Floyd; J. H. Reece, Judge.

Action by Nolan Harvey against the Rome Scale & Manufacturing Company. Judgment for defendant, and plaintiff brings error. Reversed.

Eubanks & Mebane, of Rome, for plaintiff in error.

Dean & Dean and J. M. Hunt, all of Rome, for defendant in error.

HILL, C. J. Nolan Harvey sued the Rome Scale & Manufacturing Company for damages for personal injuries. At the conclusion of the evidence in his behalf the trial judge awarded a nonsuit, and this is the error complained of. Plaintiff was employed as a helper by the defendant, and, while helping a blacksmith at the forge in the defendant's shop in bending iron, his eye was injured by a piece of metal flying in his eye. In his petition he alleges, as the specific cause of his injury, that the blacksmith whom he was helping struck with his hammer a piece of iron on the anvil, "and as he did so a piece of iron chipped or peeled from said hammer, said piece of steel being about the size of a shot, with rough and ragged edges, and same flew into the right eye of petitioner, going completely through the eyeball, and lodging at the base of the eye, and destroying the sight thereof." He alleged that the "hammer was defective, and not sound, nor was same fitted for said work, for the reason that said hammer was brittle, fragile, and unstable, and, when same came in contact with hard substances, would break, scale, and peel off as said hammer did * * * on said occasion; all of which was unknown to petitioner before said injury, and all of which was known to the defendant or should have been known, and of which the defendant could have known by the use of ordinary care.

The burden was on the plaintiff to establish that the injury which he complained of was caused as he alleged in the petition, and it is distinctly alleged, as above stated, that a piece of iron chipped or peeled from the hammer when it struck the metal on the anvil, and that this piece of iron flew into the right eye of the petitioner, causing his injury. In support of this allegation, he testified as follows: "While I was holding it there [meaning a wrought iron cuff], and he [the blacksmith] was hammering, when he struck, a piece flew off of something, and hit me in the right eye, and knocked me over backwards. I could not tell at that time what it flew off from;...